1984 PLP 887 (SCMR)

SHAFIUR RAHMAN, J.‑Leave to appeal was granted to the appellant, convict under section 302, P. P. C. (three counts) and sentenced to death on each count "to examine whether on the material on record he was not himself the victim of aggression of a nature and description which could act as mitigation in the matter of sentence at least". The appellant aged about 35 years was residing in an ahata shared by his uncle and his family in village Yaroo, Tehsil and District D. G. Khan. The ahata had a common entrance. In November, 1974 Ghulam Rasul deceased the uncle of the appellant decided to construct a wall in the ahata with a view to separate his portion. The appellant had objected to it as such a wall deprived him of entry and exit from his portion. On the 22nd of November, 1974, at about 8 a. m. the deceased Ghulam Rasul and his son deceased Ghulam Farid started constructing the wall with sun‑shaked bricks. They were actually digging foundation for it. When the appellant objected, exchange of abuses took place and thereafter throwing of clods. The appellant, according to the prosecution case, went inside the house, brought out the knife Exh. P. 9 and inflicted injuries to Ghulam Rasul Ghulam Farid and Mst. Muqeem killing all the three then and there Ghulam Rasul received nine incised wounds. Ghulam Farid had five incised wounds. Mst. Muqeem had one incised wound in the chest on. the back of the left side which had punctured the left lung. The appellant had injuries but these were abrasions and simple in nature. His injuries were as follows :‑ "(1) An abrasion 1 " x 1/9" extending upto left nasalae. The wound was on left side of the nose. (2) An abrasion on base of nose 1 " x " extending upto tip of nose. (3) An abrasion 2 x on left side of back at level of eleventh rib." Ghulam Shabbir P. W. 7 son of deceased Ghulam Rasul and brother of deceased Ghulam Farid, Sher Muhammad P. W. 6 the father‑in‑law of Ghulam Farid deceased and Mst. Nusrat P. W. 8 widow of Ghulam Farid deceased appeared as eye‑witnesses of the occurrence. The appellant put forward a counter‑version which is reproduced hereunder :‑ "In fact I was assaulted and beaten by Ghulam Rasul and Ghulam Farid deceased. They showered son dried bricks upon me and injured me and wanted to kill me. I had every apprehension of a danger to my life and in the exercise of right of private defence (sic) and person I gave Churi blows to Ghulam Rasul and Ghulam Farid deceased. Mst. Muqeem incidentally rushed in and was by chance injured. The Chhuri belonged to Ghulam Farid who had brought the same from his house to kill me. I had snatched that Chhuri from him to save myself. I narrated true story to Faqir Muhammad and Musa when the knife was taken from me by the police. Muhammad Hussain P. W. was only person who was present at the time of occurrence. No other eye‑witness was present at that time. I own 6/7th share and Ghulam Farid has 1/7th share in the Haveli. Ghulam Farid had no right to encroach upon my land or close my entrance. I had told them that they should ether send for the Patwari or get the decision from the civil Court before the construction of wall. Before the assault was made, the two deceased had abused me in filthy and provocative language." The learned trial Judge rejected the plea of self‑defence of the appellant on the ground that :‑ "There was no apprehension of death or grievous hurt to him. His plea that he acted in self‑defence of his person and property was not proved by any evidence." . He was found guilty under section 302, P. P. C. on all the three counts and sentenced to death on each count. He was also fined Rs. 3,000 on each count and on realisation of this amount, it was to be paid as compensation to the heirs of the deceased. On appeal and while dealing with the question of the confirmation of the death sentence, the learned Judges in the High Court felt convinced that the prosecution had proved its case against the appellant, and that his conviction and sentence were proper. The appeal was dismissed. The sentence of death was confirmed. The learned counsel for the appellant has contended that the prosecutions own evidence established beyond reasonable doubt that the appellant was himself a victim of aggression. Sher Muhammad P. W. 6 the complainant admitted that with the construction of this wall, the appellant was to be left with no access to his portion of the have to which in fact was joint and ancestral. The appellant bad verbally objected. The deceased Ghulam Rasul insisted on the construction of the wall and proceeded undeterred. According to the learned counsel for the appellant, where the disturbance to the property rights of the appellant was such as to raise a reasonable apprehension that he would be deprived of his access to it, he was justified in resisting the construc tion of the wall. When he did so, he was met with the clods thrown by Sher Muhammad and Ghulam Shabbir among others. They admitted having done so. The injuries on the face of the appellant bear testimony to such an attack having been launched. There is also the supporting statement of Muhammad Hussain P. W. 2 who stated that Ghulam Farid had brought the knife Exh. P. 9 and wanted to attack the appellant when he was disarmed by the appellant and then given blows by that knife. This Muhammad Hussain was not just an identification witness, he was the uncle of the appellant and a real brother of the deceased Ghulam Rasul. He was a resident of the locality. As the exchange of abuses and throwing of clods lasted about half an hour he could get attracted to the spot. He would, therefore, be not just a formal witness. On this material, the learned counsel for the appellant contends that the appellant was the victim of aggression and had at worst exceeded the private defence of person and property in the heat of the moment in the developments that took place starting with the exchange of abuses and the effort of the deceased to construct the wall notwithstanding the protest. The act of Ghulam Rasul deceased of constructing a wall so as to entail denial of access of exit from the portion occupied by the appellant in fact amounted to mischief as defined in section 425, P. P. C. It was, as facts show, directed towards affecting such a change in the joint property as to diminish its value and utility for the appellant. The appellant's protest against the construc tion of such a wall has had this consequence in view. His protests were no heeded. Not only there was exchange of abuses, there was throwing of clods of earth on the appellant. The clods that were readily available were the sun‑dried bricks collected for raising the wall. Both these events, namely, the commission of mischief with regard to the property and throwing of clods affecting the person of the appellant gave a right to the appellant to use force short of causing death. His right was short of causing death because in respect of the property the law so provides in section 104, P‑ P. C. and as regards threat to his person it could reasonably be the on of simple hurt. Even if it were otherwise the appellant could not justify a many as 9 stab‑wounds on his uncle and five on his cousin only in defence o his property rights and right to protect his person against such an attack. The right was not only exceeded but cruelly exercised. However, as there was no background of ill will, no element of premeditation or planning, no malice aforethought the extreme punishment of death is not called for. In the circumstances, while maintaining his conviction under section 302, P. P. C. (three counts) we convert the sentence of death into one of life imprisonment on all the three counts. The sentence of fine with the order to pay compensa tion as directed by the trial Court and upheld by the High Court will remain in tact. The appellant shall be extended the benefit of section 382‑B of the Cr. P. C. The sentences of life imprisonment on the three counts shall run concurrently. M.Z. M. Sentence reduced.